Bail Hearings in the Greater Toronto Area – When Someone is First Arrested

When an individual is first arrested the police will release that individual one of two ways. One way is by way of a “Promise to Appear.” Police will release an Accused person from the police station on that Accused person entering into an undertaking or “promise to appear” which usually involves the Accused agreeing to abide by a list of conditions. One such condition involves the Accused agreeing to show up to court on a particular date, at a particular court room, at a specified time. If the Accused agrees to comply with that (and possibly other) condition(s) he will be released from the station. The next step is for the Accused to personally attend at court. Alternatively, the Accused may have a lawyer attend court on his behalf. Typically police will agree to release an Accused on a “promise to appear” if the Accused is charged with a relatively minor offence. Police will also consider the length of an Accused’s criminal record when deciding between:

(i) releasing on a “Promise to Appear”, or
(ii) holding the Accused for a bail hearing.

 

BAIL HEARINGS

If police arrest someone and the Accused faces serious charges or has a lengthy criminal record, he will almost always be held for a “Show Cause” hearing. These hearings usually require the Accused to secure family, friends, or close personal relations to come forward and put up “bail” money on the Accused’s behalf. The individual or individuals who come forward in this regard are called “sureties.” A surety is someone who can prove that they will supervise the Accused if he is released from jail in order to help ensure the Accused (i) attends court whenever necessary, and (ii) does not reoffend.
Typically a Justice of the Peace presides over a bail hearing and decides whether or not it is suitable to release the Accused back into society prior to the Accused’s trial. In serious cases, an Ontario Court Judge will preside over the bail hearing instead of a Justice of the Peace.

 

CONSENT RELEASES VERSUS CONTESTED HEARINGS

If the police refuse to release an Accused on a “Promise to Appear”, the Accused will be transported to the courthouse closest to where the Accused was arrested and/or the offence is said to have taken place. Please refer to the links to the left, under the heading Courthouses. Certain courthouses are closed on weekends. The only Toronto courthouse operating on weekends is Old City Hall (60 Queen St. West – Toronto).Once an Accused arrives at the courthouse, the Crown Attorney (opposing lawyer / prosecutor) has discretion to decide whether or not to agree to release the Accused (a “consent release”) without running a contested hearing. Usually a Defence lawyer will have to present a written, well thought out, plan of supervision, involving one or more sureties, in order to release the Accused “on consent.” In many cases the seriousness of the allegations will prevent a Crown Attorney from even considering a consent release.If the Crown Attorney seeks the detention of the Accused pending trial, the Defence will have to call evidence to convince the presiding Justice or Judge as to why the Accused should be released. A contested hearing or “bail hearing” then ensues.

 

What is a surety?  A surety supervises the accused, and acts as a financial guarantor. Some Justices refer to sureties as civilian jailers. The surety must promise the Court that she will do her best to ensure that the accused attends Court, obeys his bail conditions, and is well behaved. The surety's financial obligations will be stated on the Recognizance of Bail. If the accused does not show up in Court or does not follow the conditions, the surety can be liable to pay the full amount. Generally, a proposed surety must be a Canadian citizen or a landed immigrant, must not have a criminal record or outstanding charges, and must not be acting as a surety for anyone else. The Justice will consider how long you have known the accused, the nature of your relationship, and how often you communicate. An older family member that the accused respects, for example, is often an ideal surety. The Justice will consider your character, background, community ties, and finances. A surety must be able to afford the amount of the bail.

Becoming a surety is a serious decision, one not to be made lightly. To get informed, and to assess whether you might qualify as a surety, carefully review the questions and answers below. If you need advice as a surety, or want to hire me for the bail hearing, please contact me now

 

THE ROLE OF THE SURETY

Fathers, mothers, brothers, sisters, friends, and spouses can all be sureties. The best surety is someone who presents as firm, smart, authoritative, realistic and unforgiving. Courts want to know that if they trust a surety with being in charge of an Accused, the Accused is not going to be given much leeway to (1) miss court or (2) re-offend. In serious cases, the court will require the Accused to live with his surety in order to allow the surety to maintain close supervision over the Accused. In less serious cases, the surety may not have to live with the Accused but the surety must still be prepared to ensure that the Accused follows all of his bail conditions. Whenever an Accused is released on bail he will be given a list of bail conditions that he must abide by. Inevitably, one condition is that the Accused must show up for court whenever necessary. In cases involving serious allegations, the Accused may be required to abide by a strict house arrest (ie. Never leaving his surety’s residence or only leaving the residence for the purposes of attending at work or at an education institution.

 

WHERE CARYMA SA'D COMES IN

Typically the lawyer’s first job is to prepare the surety so that the surety is comfortable taking the stand and answering questions in court. The lawyer’s second job is to extract crucial information from the surety by questioning the surety in open court. The Crown Attorney (opposing lawyer) will then cross examine the surety and may try to convince the presiding Justice of the Peace (or Judge) that the Accused should not be released or should not be released to the surety(s) proposed. The Defence lawyer must try and demonstrate to the Court that: (i) the surety is fit to supervise the Accused, and; (ii) the surety has come up with an appropriate plan of supervision to sufficiently ensure that the Accused will follow all of his bail conditions if he is released. The focus for the defence at this stage is to try and demonstrate a plan that is sufficient to ensure: (i) the Accused will show up to court whenever necessary, (ii) will not re-offend when out on bail, and; (iii) that society would unlikely be outraged if it were to learn of the Accused’s release in the circumstances.

How to Get Bail, Toronto

In order to be successful at the bail hearing, the accused needs to convince the court that he will attend future court dates, not reoffend, and that releasing him is not contrary to the public interest. A big part of this is presenting to the court a credible surety to sign for release. Toronto courts deal with bail matters daily. A surety is a person that ensures the accused will abide by the conditions of bail and show up for court. The surety will normally agree to pledge a specific amount of money that may be forfeited if the accused fails to meet the conditions or does not show up for court. Sureties are typically family members, friends, or employers of the accused. It is important that the surety live relatively close to the accused, or have regular contact with the accused, as this demonstrates to the court that they will be able to effectively supervise the release. The court may inquire about the surety's work and family commitments to ensure they have the availability and resources to perform the task successfully. The court must also be satisfied that the surety has the financial means to pay the pledge of money in the event that the accused violates the terms of the bail. Depending on the amount of money required to be pledged, evidence of financial means may be required. This can include deeds to real property, bank account information, tax notices of assessment, or letters from an employer.

How much money is needed to post bail?

The surety is not normally required to provide any money up front (post bail) in Canada. Instead, the process works by them simply being legally bound to pay the money in the event the terms of bail are not met. It is a common misconception that amounts are typically required to be paid up front in order for the accused to be released.

Must the surety attend court?

It is extremely important that the surety attend the bail hearing in person. The judge or justice needs to see and speak to them to evaluate whether the person is suitable to be a surety. The surety should attend court on time, dressed in business casual attire, and with evidence of their financial means. The surety needs to be prepared to convince the court that they have the ability to properly supervise the accused and will ensure the accused attends all court dates. The court will also be looking to ensure the surety is agreeing to act voluntarily and understands the personal financial risk that being a surely poses to them. It is also generally a good idea for the potential surety to speak to the crown prior to the bail hearing to convince them of the above noted important factors. It is extremely helpful for the Crown to be in agreement that the person is a good candidate to act as a surety, even if they are opposed to release.

How many sureties are needed to get bail?

Normally, only one surety is required to get bail. This being said, sometimes there is more than one. Whether more than one surety is required will depend on the facts of the case. If one surety is unavailable for a certain period of time, but is otherwise available, another may be required to sign on to cover the missed time period. Another example of an instance where more than one surety is required is when an asset being pledged is held by more than one person. If a property deed to a house is being used as evidence of financial means, the court may require all individual owners listed on the deed to agree to the surety.

Vary Bail Conditions in Toronto

If you wish to vary your conditions of bail, you must apply and appear in court providing reasons as to why. In Toronto, bail vary applications are made by lawyers daily. The conditions required of the accused when they are released on bail tend to be similar to those found in criminal undertakings. It is possible to vary any condition depending on the facts of the case. In addition to the condition to attend court, other possible conditions include:

1) keep the peace and be of good behaviour;
2) avoid contact with the victim;
3) avoid specific geographic locations;
4) stay within the province (or specified area);
5) avoid non prescription drugs or alcohol;
6) report to the police station at specific times;
7) live at a specific address (sometimes with the surety);
8) notify police of any changes to address or employment.

Ultimately, the court will impose/agree to the conditions it feels are necessary to ensure the safety of the victim, that the accused doesn't commit new crimes, and that the accused attends court. The job of an experienced Toronto bail lawyer is to ensure that you get the most favourable bail conditions possible.

Bail Violations

In the event the accused is found violating the bail conditions, he will likely be returned to jail until a further bail hearing can take place at which time he may be re-released or required to await the remainder of the pre-trial time in jail. If a surety has pledged money for the accused release, that person may be required to forfeit this sum to the court. These are matters that are determined by the judge (though as always the opinion of the crown prosecutor will aid in his decision).
The accused may also be charged with a criminal offence for failing to abide by the bail conditions (or failure to attend court). This means even if he eventually is found not guilty of the offense he was originally charged with, he could still be found guilty and acquire a criminal record for the bail violation itself.